Advocating the case for patent agents

Apr 20, 2013

20th April, 2013

In the recent decision on Novartis’ case, the Supreme Court of India observed that scope of a patent claim should not be determined by artful drafting by skilful lawyers. The drafting skill and services rendered by lawyers/patent agents was the subject of debate before the High Court of Madras recently.

Provisions held unconstitutional

The High Court was of the view that being enrolled as an advocate is certainly a better qualification than the examination conducted by the Controllers of Patents in Patents Act (the Act) to register any one as patent agent. It declared as ‘illegal, unconstitutional, ultra vires, void and unenforceable’ the amendment to Section 126 of the Act which bars advocates from directly registering as patent agents and allows only those with qualification in science, engineering or technology to qualify through the patent examination. The petitioner was an advocate practising in IP laws but who could not be registered as patent agent owing to the amendment.

Unreasonable restriction

Some interesting aspects which emerged out of the discussion are that legal acumen, drafting and interpreting are forte of lawyers, the branches of science are so diverse that a mere degree without any background in law could not ensure that public are getting the best services available and that by prescribing such conditions, a monopoly was being created unreasonably restricting the rights of a certain class - namely advocates.